The concepts of a fault and no-fault divorce are state-specific and country-specific. If you aren’t sure of the laws in your jurisdiction, your best course of action is to first speak with an experienced divorce lawyer who can review the laws of your state, how they apply to you, and the best legal options going forward. When a spouse petitions for divorce, he or she usually has two options. He or she can either ask for a divorce based on no-fault grounds or he or she can file based on fault-grounds. The option he or she chooses depends on the state laws where he or she lives and the particular circumstances of the case.
The difference between fault and no-fault divorce can be substantial and which one applies to you depends on where you live. This article examines the differences and the grounds that are accepted to prove who was at fault for a divorce.
No-Fault Divorce
A no-fault divorce refers to a type of divorce in which the spouse who is filing for divorce doesn’t have to prove any fault on the part of the other spouse. All states recognize no-fault divorce, but as of 2021, only 19 states are “true” no-fault divorce states. The only option you have for filing is no-fault. The reason given by parties seeking a no-fault divorce is “irreconcilable differences” or an “irreparable breakdown of the marriage.” The spouse receiving the divorce petition cannot object to the other party’s petition for a no-fault divorce. That objection itself can be viewed by the court as an irreconcilable difference. Usually, these states require that the spouses live separately for a designated period of time before either party can file for divorce.
Fault Divorce
Fault divorces are not as common. When a spouse requests a divorce based on some fault of the other spouse, the “matrimonial offenses” that are commonly given as grounds for divorce are:
Cruel and Inhuman Treatment
This term is defined under state law. However, it usually requires more than simple misconduct or incompatibility. Instead, the conduct must usually be to such an extreme that continued cohabitation threatens the other spouse’s physical or mental health. Ongoing physical or emotional abuse may be proof of this ground.
Adultery
Adultery is a common fault-based ground for divorce. However, state law may vary on what is considered adultery. For example, some states specify that adultery involves the physical act of sexual intercourse in order to qualify as such. Adultery is often proven with circumstantial evidence, such as showing that a spouse and a third party were romantically attached and had the opportunity to commit adultery. Judges must often decide whether or not adultery has occurred by the totality of the circumstances. There are specific defenses to adultery, such as being guilty of the same conduct or forgiving the conduct and resuming sexual relations with the adulterous spouse.
Incarceration
The state statute may allow for fault-based divorce if a spouse is incarcerated for a specific amount of time, such as over one year.
Insanity
If a spouse is confined for mental illness for a certain period of time in accordance with state law, this may be grounds for divorce.
Abandonment
Another fault-based ground that may be recognized by the state is abandonment or desertion. The statute regarding this ground usually specifies the amount of time that has lapsed since the spouse abandoned the other, usually for a year or more.
Abandonment occurs when one spouse voluntarily leaves the other with the intent to desert him or her. The clock on the required timeframe begins once the spouse has abandoned the other. Reconciling and then parting ways again may or may not defeat this ground, depending on state law.
Substance Abuse
Some states allow for fault grounds based on habitual drunkenness or drug addiction.
Impotence
If one or both partners are not able to perform sexually, the state may allow this reason for divorce.
Benefit of Proving Fault
In some states, proving fault can impact the financial outcome of a divorce. For example, if a judge finds that a spouse commit adultery and used marital assets to supplement a lover’s lifestyle, he or she may consider this fact when determining how to distribute property or how much alimony to award. In some states, a spouse is ineligible for alimony if he or she committed adultery or was proven to be abusive in the relationship.
When you file for divorce, you’ll have to indicate on your divorce petition the reason why your marriage is ending—the “grounds” for the divorce. In some states, divorcing spouses have the option of filing either a “fault-based” or “no-fault” divorce. Other states allow only no-fault divorce. A key difference between fault and no-fault divorce is that spouses filing a fault divorce are typically not required to live apart for a specific period of time before filing.
In some states that recognize fault divorce, establishing fault can result in a larger distribution of the marital property or granting of alimony to the spouse that was not at fault. In other states that require or allow fault divorce, fault is not a factor in the property settlement decision at all.
These two characteristics make a fault divorce more attractive to some people.
Fault Divorce: Comparative Rectitude
When both spouses seek a fault divorce and can both prove the other spouse was at fault, the court decides which one is least at fault. That party will be granted the divorce. This is called “comparative rectitude.” This doctrine was created to address the problem of courts granting neither party a divorce if they were both at fault. Courts have a policy of not forcing people to stay married if they don’t want to be.
Fault Divorce: Defenses
Unlike a no-fault divorce, a spouse can object to a fault divorce. They must disprove the fault by presenting a defense. These are common fault divorce defenses:
Connivance is an absolute defense to adultery. Connivance alleges that the complaining spouse agreed to and even participated in the adultery or created the opportunity by enticing someone to seduce their spouse.
Condonation is a claim that the other spouse knew about the problematic conduct, forgave that conduct, and resumed the marital relationship. This is typically used to defend against an adultery accusation.
Recrimination is when the complaining spouse is equally at fault or engaged in similar conduct. For example, if both spouses had affairs, neither one would be able to use adultery as grounds for a fault divorce.
Provocation is when one spouse provoked the other spouse to act in a certain way. For example, where one spouse abuses the other spouse, that may have forced that spouse to leave the marital home. The abusive spouse would not be able to use abandonment as grounds for divorce, since it was his or her abuse that caused the other spouse to leave.
Collusion refers to an agreement between the spouses to fabricate a grounds for divorce. If one of the spouses changes his or her mind, collusion could be raised to lessen the original grounds for the fault divorce.
Proving any of these defenses can be costly and time-consuming. It often involves the use of witnesses. Furthermore, courts have a policy of granting divorces to people who ask for them, despite defenses given by the other spouse.
These reasons typically deter people from attempting defenses.
Fault and No-Fault Divorce: Residency Requirements
Most states have a residency requirement that determines who is eligible to file for divorce in that state. Usually, at least one of the spouses must have been a resident of a state for six months to one year in order to file for divorce there. Washington, South Dakota, and Alaska have no required length of time. To file in one of those states, you merely need to be a resident of that state at the time you are filing.
It’s in your best interest to file for divorce in the state where you live. The court that orders the divorce decree is the court that has jurisdiction for all future changes to court orders.
For example, you and your spouse receive a divorce in Utah. Three years later you want to move to Utah for a job opportunity. You want to revise your child custody arrangement. You will need to take your child custody case to the Utah court that granted the initial divorce because that court has exclusive, continuing jurisdiction over the divorce and child custody order. (If you are given permission to move your child to a new state, jurisdiction may be transferred to that state.)
Validity of Divorces across States
Courts of all states honor the decisions made by courts in other states because the Full Faith and Credit Clause of the U.S. Constitution requires it. Therefore, going back to the preceding example, if your spouse files in Utah, this divorce and all of the court orders related to it, apply to you in your Missouri home.
The validity of a state court’s decision comes into question when one of the spouses is not a resident of the state at the time of the divorce proceeding. The court may not have personal jurisdiction over the nonresident spouse. A lack of personal jurisdiction means that although the divorce decree may be valid, other related decisions, such as child custody, support, and property division, may be invalid.
If you receive papers from a foreign country, there are many jurisdictional issues, such as what country is involved, where the spouses live or have lived, and where the children (if any) live.
The reasons why spouses choose fault-based divorce vary. Some people don’t want to wait out the period of separation required by their state’s law for a no-fault divorce. And, in some states, a spouse who proves the other’s fault might receive a greater share of the marital property or more alimony. For many, though, the choice might be prompted by hurt feelings. No matter what the reason for choosing a fault-based divorce, though, these divorces tend to be more expensive, as many spouses choose to hire a lawyer to help them present their evidence and convince the judge of their arguments.
Do I Have to Live in a State to Get a Divorce There?
All states have a residency requirement that one or both spouses must meet to be eligible to file for a divorce. Often, states require the filing spouse to be a state resident for at least three months or even as long as a year. The filing spouse must provide proof of residence for the required length of time. Only a few states have no time requirement for resident status (being a resident at the time you file is enough). If you think that your spouse might file for divorce in another state, consider trying to be the first to file—in your own state. Rarely is a divorce settled in one court appearance, and if your spouse files elsewhere, you could rack up a lot of traveling expenses. Also, after the divorce is over, you must file any modifications to the divorce decree, including the property settlement agreement and arrangements for child custody and support, in the state that heard your divorce, which could require you to travel out of state for years to come.
Can a Court Enforce an Out-of-State Divorce?
If one spouse meets the residency requirement of a state or country (such as having lived there from six months to a year), a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.
However, a court’s decisions regarding property division, alimony, custody, and child support might not be valid unless the court had jurisdiction over (the legal power to make decisions about) the nonresident spouse. The nonresident spouse falls under the court’s jurisdiction when:
• The filing spouse personally serves the nonresident spouse with the divorce documents (meaning you deliver them into the person’s hands)
• The nonresident spouse consents to jurisdiction (by either showing up at a court hearing or signing an affidavit of service acknowledging receipt of court documents), or
• The nonresident spouse obeys the rulings of the out-of-state court (for example, by paying court-ordered child support).
If you receive divorce documents from a foreign country, you might want to consult an attorney about whether your state court or the foreign court governs the issues. Whether a foreign court has the power to decide issues in your divorce depends on many factors, such as which particular country heard the case, where the parties lived and for how long, and whether children are involved.
Which should you choose: fault or no-fault divorce?
In Utah nowadays, almost all divorcing spouses file on grounds of incompatibility. There are very few fault divorces granted in Utah anymore. This is because the process of fault divorce and no-fault divorce is largely the same. So, usually, there is no advantage in filing for a fault divorce.
In the few fault divorces I have seen, it seemed that the filing spouse was asserting fault grounds just so she could get embarrassing gossip into the public record. This type of legal drafting is spiteful and petty. I would never advise a client to file a divorce petition in this manner.
Nevertheless, there are a few minor advantages you may gain by filing a fault divorce.
For example, in most divorces with minor children, you have to wait ninety days after filing the petition before your divorce can be finalized. However, the ninety-day waiting period does not apply if you file for divorce for any of the following grounds:
1. Abandonment for one (1) year;
2. Extreme cruelty;
3. Habitual drunkenness;
4. Imprisonment of the other party in a state or federal penal institution under sentence thereto for the commission of a felony at the time the petition is filed;
5. The procurement of a final divorce decree outside this state by a husband or wife which does not in this state release the other party from the obligations of the marriage;
6. Insanity for a period of five (5) years, the insane person having been an inmate of a state institution for the insane in the State of Utah, or an inmate of a state institution for the insane in some other state for such period, or an inmate of a private sanitarium, and affected with a type of insanity with a poor prognosis for recovery;
7. Conviction of any crime defined by the Utah Child Abuse Reporting and Prevention Act committed upon a child of either party to the divorce by either party to the divorce; or
8. A child of either party has been adjudicated deprived, pursuant to the Utah Children’s Code, as a result of the actions of either party to the divorce and the party has not successfully completed the service and treatment plan required by the court.
If you file for divorce on any of these grounds, your waiting period is thirty days. These fault grounds don’t matter if there aren’t children of the marriage. If there are no children, your waiting period is ten days, regardless of whether you file on fault grounds or not.
In any divorce case, you may finalize your divorce in less time than the waiting period if there is an emergency. This is true whether you file on fault grounds or no-fault grounds.
Another difference between fault and no-fault divorce in Utah is that in a no-fault divorce, if you have children, a judge must order you and your spouse to attend a class on helping children cope with divorce. In a fault divorce, the judge is not required to order you to attend such a program. However, the judge still has the option of ordering you to attend such a course if you file for a fault divorce.
The bottom line: There’s rarely any advantage to filing a fault divorce in Utah. A disadvantage of filing for fault divorce is that you will have to present evidence and prove to a judge’s satisfaction that your spouse has committed the fault you allege. You don’t have to present any evidence of fault if you file on grounds of incompatibility. Because it takes time to present evidence of fault, filing for fault divorce merely adds extra unnecessary time to your case.
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